Los Angeles daily herald., 1887-10-18

deed for same. Adopted.
Recommended the franchise OF the s.
moving OF their tracks over to their ow
line providing they remove the main trae
to their line of property as shown per MAJ
Referred back so that the franchise may
amended so as to COMPEL switches to /
started south of Fourth street and north {
Sixth street.
recommended that +. e. Burlingsme /
allowed $500 on thelevee contract. Adopte'
AIR. tankentield offered "a resolu
ton requiring the City Railroad Com
pauy to put its tracks in the prope
place within FIVE days after notice
after which time the Superintendent
OF Streets will remove such tracks a
obstruct the paving of the streets
Mr.. Frankenfield said he introduce,
the resolution because the City Rail
road Company had refused or ne
elected to move the track so the paw
ing could be done. 1t was time tina
the railroad company was forced to dt
what was right in the matter. Th,
resolution was unanimously adopted
COMMITTEE REPORTS.
The Zanja Committee recommended
that on the petition of S. B. Hunt thai
zanjas be piped through such portions
of the Lick and Grant tract, as under
contract with the owners OF the land
the citv is compelled to pipe or aban
don. Adopted.
Recommended that the bid OF f. G
Burlingame for the construction OF the
overflow for Reservoir No. 4 be re
jected. Adopted.
Recommended that the petition o.
J. M. Davis to pipe zanza No. 3 bt
granted, Adopted.
The Sewer Committee recommended
that the petition of John G. Ogilbie
to connect with a sewer be granted
provided he pays his sewer assess,
ment. Adopted.
Recommended that the committee
be empowered to lay public sewer
on First street, between Fort and
Main, and on Second street, between
Spring and Main streets. Adopted.
The Finance Committee reported III
the matter of the report of the Board
of Education that We "desire to ascer-
tain under what authority of law they
paid salaries to teachers during the
month of September, when no serv'
ices were performed, and recon-
mended that the Clerk communicate
with the Board of Education to that
effect" Adopted.
Recommended that the petition OF
Boettcher & Jastron be referred to the
City Attorney. Adopted.
Recommended that warrants in
favor OF G. w. Lather, L. Aguilar, L.
Desmaisons, j. Rapel and r. Hero be
destroyed. Adopted.
Recommended that the sum OF
$401 so be transferred from the Cash
fund to the Vignes-street Improve
ment fund. Adopted.
Recommended that the sum OF
$4,000 be transferred from the Irriga-
ton System fund to the Zania No. 4
fund. Adopted.
A contract with William McLane
for laying a sidewalk around the Sixth
Street Park was read and approved.
A contract with Sanford johnson to
grade Eleventh street was read and
A contract with Rose & Newbill to
grade Union avenue was read and
STREET RAILWAY PAVING.
City Attorney DAILY presented the
following opinion. which was referred
to the Board of Public Works:
To the Honorable, the Council Of tie City o.
Los Angeles-GENTLEaEN: In the matter OF
the communication from the Main Street
and Agricultural Park Railroad Company
in reference to the improvement of Main
and Washington streets, report as follows
The statement that the collection OF the
assessment for grading Washington street
would be oppressive, inequitable and un
just, is one of fact on which there may be
difference of opinion; nut that it is illegal,
and for the reasons stated, namely, because
said corporation is not seized in fee or free
hold of any real property on said street"
do not accept Nor do | think the Main
pany wishes TO have it understood that they
have no real estate or interest or estate in
Washington Street, If the interest or estate
of that corporation was attacked in the
courts it would claim that by the franchise
and its acceptance it acquired the right OF
way on Main and Washington streets; that
this right of way is an easement; and that an
easement is property. 1t Is an interest in or
over the soil. 1t would claim that the rails
and ties when laid down became part OF
the real estate; that the title to the rails when
laid and such title to the land as may be re-
quired for the purposes OF the company be-
ca ne vested in the company. 1t does claim
this. 1t has claimedit Its estate and inter
est in the soil of Washington street exists in
the right to lay down tracks and ties and
attach EN- to the soil and run their cars
over them for profit. This interest and estate
of this corporation on Main aud Washington
streets. when acquired, was very valuable
one. When this corporation shall have ac-
quired this estate and title in the soil of the
streets by strict compliance with the con-
ditions of its franchise and the law by which
the authority is given to acquire such es-
tate then its position on that portion of the
earth is fixed and immovable, and the right
of the company to the control, enjoyment
and profit of its estate in the soil of the
Streets to the full extent of that estate, will
be rs perfect as an right of ownership OF
real estate. The difference is in the quanti-
ty, not in the quality of the estate.
Here, then, arises the question: Has it ac-
CURED this estate? In one communication
it asserts it has not as to Washington street;
in another communication. that it has on
Main street. 1t has claimed in both com
munications that the franchise from the city
is in the nature of contract. l can not
concede this. particularly in the sense the
company would have it understood. am
not convinced that the power of munici.
pality to the control of its streets, a power
held in trust for the benefit of the public
can be surrendered or delegated oy contract
to private parties. Nor am convinced that
the power to the control of the streets, which
is a continuing one, can be abridged or alb
rObated. But the portion of the franchise
cited in the communication will not, in my
judgment bear the construction the com
pany would give; and would it bear such
construction the city is, by the provisions
of Section 507 of the authorizing act estop
ped from alternating or impairing Its righ,
to grade, pave, macadamize, or otherwise
improve. altar or repair the streets or high
ways of the city," The provision cited is al
follows: provided and upon condition
that the said grantee or it's successors shall
plank, pave or macadamiZe the entire length
of said route along which said road may ba
constructed, between the rails and for two
feet on each side thereof, and shall keep the
same constantly in repair flush with the
grade of the streets" etc. This is not to be
construed as contract with the City that
the Company shall do its own paving when
pavement is ordered by the city
but rather condition enjOined to pave
the entire route of the track when
the road is constructed and thereafter to
keep it in repair, without reference to the
grading, paving, matchmaking or other i'm
proyement of any portion of the street over
which they may run. / am convinced that